Tag: ICASA

As regular readers would know, I’ve written quite a few columns regarding TopTV (and previously, Multichoice’s) attempts to be given permission to screen adult content on their subscription channels. TopTV have finally succeeded, on their second attempt, and as one of those who presented at the public hearings in support of their application, I’m pleased to hear it.

Not because I think porn is necessarily good, or always unproblematic – but because it’s not my (or Icasa’s) decision as to whether you should be allowed to watch it or not.

When TopTV announced that they were planning to launch a fresh bid to screen adult content, a number of the self-appointed guardians of South Africa’s moral fibre rushed to our aid. The usual suspects (like African Christian Action or the Family Policy Institute) spoke of the “flood of filth” that would destroy our families, corrupt our children, and in general violate more rights than I was aware we even had.

The Icasa hearings on these adult content channels took place on March 14, and I was one of only two people who presented in favour of TopTV’s application (besides the applicants themselves, of course). The written submissions received by Icasa were overwhelmingly disapproving (440 against, with only 16 in favour), while at the hearings the ratio shifted to a more balanced two in favour and six against.

That’s where the impression of greater balance began and ended, for the most part. If you were keen on getting examples of how to marshall anecdotes, logical fallacies and statistical innumeracy in favour of a moralistic conclusion, the Icasa offices were the place to be on that day. As I said in my submission, porn seems to reliably increase only two things: arousal and religious outrage, but perhaps negative causality in relation to common sense needs to be added to that list.

It is not true, as some might think, that you need to think pornography entirely unproblematic to defend the right of a broadcaster to screen it, or viewers to watch it. Personally, I’m quite convinced that pornography can alter expectations in the bedroom, or in relationships more generally. But so can just about any entertainment product you can imagine, and pornography only becomes particularly interesting if it causes harms by necessity, or harms that are more severe or of a distinct type.

For some, pornography does seem to be particularly interesting by virtue of simply being pornography. It’s about sex, and sex is about families, and families involve children and healthy societies. We don’t like to talk about sex, or watch it – especially not the kind of sex they show in pornography. Ergo, porn harms children and families.

Except, we don’t have any compelling reasons to believe that it does, in ways attributable to the pornography rather than to other variables such as poverty, communication breakdowns, or the pressures of fulfilling Calvinist, heteronormative, nuclear family-related social expectations that are increasingly ill-suited to the various interests and desires of the 21st-century human.

Introducing one or more pieces of research here will mostly only serve to stoke up a cherry-picking contest in the comments and letters, so I’ll say only this: the past few decades have allowed for a global social science experiment involving being able to compare class, income, race, gender, religion and whatever else you like with porn and sexual violence. And when you look at that data, it requires a fair amount of contortion to avoid the conclusion that people who are educated and living in a functioning and responsive state commit fewer crimes of all sorts, regardless of porn access.

Pornography is a red herring in this argument, particularly with regard to the anecdotes regarding the effects of porn that the Icasa commissioners got to hear about. There’s no question that South Africa is experiencing obscenely high levels of rape (not that any level is not obscene), but it’s not possible to blame pornography for this, given that the sexual violence clusters in areas that are poor, and have less access to pornography than the average reader of this column does. The middle and upper classes should be doing most of the raping, and they are not.

Yes, of course there may be a correlation between pornography and sexual violence – just as they may be a correlation between hours spent on church pews and lower-back ache. But correlation does not imply causation. It’s easy to use correlation and “science-y” language to contribute to a moral panic – but less easy (although far more useful) to demonstrate a clear causal link.

It adds no evidence of causation to wheel out a young man to testify that his cousin’s consumption of Etv pornography led to his rape, at age 13. For every example of this type, we could find thousands of South Africans who watched Emmanuelle without resorting to sexual violence. Note also the apparent contradiction between the “rape is about power, not sex” narrative and the “porn on your TV screen causes rape” narratives.

Then, asserting that porn is as addictive as heroin or cocaine, and that it takes only 5 minutes exposure for a child to be irreparably harmed, doesn’t make it so. The editors of the DSM-V chose not to include pornography as an addition – evidence that it’s at least a contested claim, rather than something to be bandied about as fact.

The real, and honest, narrative here is simply one of a contest between various moral preferences, where pornography, sex worker trafficking and rape start being treated as inter-related just because people say they are so. But the facts of the matter can never be settled by shouting, by our (legitimate) fears for our safety, or by anecdotes involving claims like Ted Bundy “got started in porn” – as if porn should now be understood as likely to turn all kids into Ted Bundy’s.

The joy (albeit one experienced all too rarely) of living in a constitutional democracy that is mostly secular is that you don’t have to watch consume porn if you don’t want to. There are risks in allowing people choice, yes: it’s difficult to predict or control what choices people make, and therefore what you – or your children – might be exposed to.

This means that the task of parenting, or of providing moral guidance in other contexts, is a difficult one. This is as it has always been, and as it should be. But none of us has the right to prescribe morality for others, especially not on the basis of cherry-picked data and moral hysteria.

One of the documents that awaited my return from the Icasa headings on TopTV’s application to screen adult content channels was a medical certificate, in support of a student’s application for an extension on a deadline. The certificate bore the logo of a naturopath-slash-homeopath, though, and made no reference to the student’s ailment, or her date of her expected return to full health. (Edit: I’ve subsequently submitted a complaint to the Allied Health Professions Registrar about this.)

The subject material in the previous week of the course was pseudoscience, making the submission of this particular certificate all the more ironic. Needless to say, the extension was not granted. But the fact that a student could submit it at all – to me, who makes no secret of my lack of respect for imaginary medicines – was another reminder of how strongly the will to believe can make us immune to changing our minds, or to seeing things from perspectives other than the one we’re currently committed to.

The hearings on TopTV’s channels were certainly interesting. They were also somewhat disappointing, in that any of the stronger cases that could be made against granting permission to screen these channels were entirely absent. To put it plainly, some of those who commented on my column last week would have done a better job than those who made submissions and presented to Icasa.

However, even stronger cases – perhaps from a gender rights perspective, but without the religious moralising and paternalistic bias – should fail to persuade Icasa, because the legal case for being allowed to screen the channels is to my mind irrefutable. But the cases that were presented testified mostly to hysteria’s dominion over reason.

And testimony there was, of the sort that those of you who have been to certain sorts of churches would remember. At one point, the commissioners gave permission for the one of the presenters to introduce another speaker, a 23 year-old man who shared his story of having been raped by his cousin at the age of 13, after said cousin had developed an “addiction” to E-Tv’s adult programming.

This happened after the speaker in question had reminded us that she herself “knows” that pornography causes rape, because of evidence including the piles of pornographic magazines found at rape scenes x and y. This speaker was an authority, she reminded us, because she herself had been raped.

Other authorities we heard from included Nelson Mandela, because quotes from the Long Walk to Freedom are somehow relevant, and also Jesus, because Icasa should heed the words of one particular religion in interpreting laws and a Constitution that are premised on freedom of religion, and freedom from religion as a defining characteristic of the law.

There was no stage, but we were seeing theatre. Not only in the powerful anecdotes from sympathetic figures, but in the rhetorical force of emotive language, the blown-up pictures of brain regions and science-y language (polydrugerototoxins are a thing, according to Doctors for Life) but also in the reaction of the crowd, who were lapping this up. They were receptive to hearing that pornography was as addictive as cocaine and heroin (with the fact that the DSM-V doesn’t list it as one being less important, I guess).

Any mention of “the children” seemed to draw a whoop, and there were sympathetic sighs and murmurs at every mention of moral degeneration of South Africa. The evidence against a moral panic around pornography was pre-emptively discredited with a wealth of statements along the lines of “just yesterday, I spoke to a policeman who told me that pornography is the cause of these problems”.

The people “on the ground” know the truth, we were told, and the “so-called research” indicating that pornography isn’t the cause could not be trusted. It was in fact “rubbish”, which I imagine must be a technical term of some sort. Just four minutes of exposure to pornography can irreparably alter a child, so no safeguards are sufficient – any increase in the availability of pornography is impermissible.

Of course I’m laying it on thick in the text above. This is, after all, part of a competing piece of theatre. But the gravity of a situation (namely the number of incidents of sexual violence, and the struggles of support groups like Rape Crises to even exist, never mind provide support for all) is no excuse for ignoring evidence and basic principles of critical reasoning.

Innumeracy is also a problem. Widespread inability to express and analyse ideas cogently is a problem, not only in that it allows for authorities like Ministers and naturopaths to deceive us, but also in that it prevents them from being able to themselves make sense, even if they cared to do so.

And, if we do want to address the high incidence of rape and other forms of sexual violence, the hysteria gets in the way of our finding the best ways of doing that. For every example of someone who was raped by someone who consumed porn, I can find you thousands of men who consume porn, and don’t rape. But I wouldn’t bother doing so, because these are anecdotes, and good arguments can’t be made from them.

Yes, you might find pornography degrading. And if people who likewise found it degrading were being forced to participate in it, we would have a violation of their consent or their will, which is a legal matter. If the police or the courts are being insufficiently attentive to that, there is an additional problem. But the problem is not the pornography itself, unless that by necessity is degrading.

Some, like the Christian Action Network, think it is and want the entire industry criminalised. But when significant numbers of women search out pornography themselves, it can’t be degrading by necessity – it’s degrading to you, because of your moral standards.

Your moral standards cannot be imposed on others, especially not by the state. It’s a contingent fact only that the state – in South Africa at least – tends to side with the Christian viewpoint in matters such as liquor sales and public holidays.

But let’s imagine the (for example) Christian response if the state was an Islamic one. Then, the same Christian who told me at the hearings “you have no future in this country” would likely be on my side, saying that the evidence alone should dictate policy, and that quotes from the Quran or personal anecdote were no grounds for making decisions.

In other words, they would see the value of a secular state, in which those who are repulsed by pornography shouldn’t have it forced upon them, and where those who wish to consume pornography are free to do so, assuming that it doesn’t cause necessary harms to others. The case for it causing necessary harms to others is far weaker than the case that it does so, as I’ve argued in last week’s and other columns.

As I point out in one of those columns, I’m even of the view that pornography can contribute to social dysfunctions. But I don’t get to choose what sorts of relationships people have with each other, and neither do you – except for those relationships you’re actually in. Meddle with those all you like. But if you want to meddle in mine, you need to motivate doing so with better reasons than your subjective preferences, or the strength of your conviction in them.

In 1983, MacKinnon and Andrea Dworkin drafted an ordinance restricting pornography which was briefly adopted by the Indianapolis legislature before being declared unconstitutional. Much of the language defining pornography in this ordinance can also be found in ICASA’s “Reasons” document (pdf) explaining why On Digital Media (ODM, trading as Top TV) were refused permission to add three pornographic channels to their product line.

This ordinance defined pornography as the “graphic sexually explicit subordination of women through pictures and/or words”. The tests for whether or not a item was pornographic included “women are presented dehumanized as sexual object, things, or commodities”, “women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assaults”, and women being presented in “positions of sexual submission, servility, or display”.

ICASA accept the MacKinnon definition uncritically, much like their entire argument accepts various normative moral claims uncritically. In fact, you might struggle to find a more clear example of a regulator having its work done for it by remote-control, whether via the selective retreating of contested arguments from the likes of MacKinnon or by the latter day moral hysteria of the Christian Action Network (who have previously accused the Cape Times and the Cape Argus of censorship when those papers refused to publish obituaries for the 900 000 South African babies killed by abortion).

Many of the problems with ICASA’s reasoning were skewered in Ivo Vegter’s column on this topic and also my previous column on Multichoice’s similar experience, so won’t be repeated here. Suffice it to say that their argument is still premised on every young person being an expert in both psychological manipulation of his parents, and perhaps also a master hacker of set-top boxes (but one who mysteriously seems to never have heard of the Internet and the pornography available there).

He’d need to be all these things to a) persuade an adult to subscribe, pay the monthly fees, and reveal the two independent pin codes and b) crack those two pin codes if necessary. I checked the sums with the mathematician John Allen Paulos, who confirmed that there are 10 000 possible combinations of one 4-digit pin code, and 100 000 000 combinations for two pin codes. Parents would in other words have to stay away for months, if not years, for children to be able to guess the pin numbers in question. To put it another way, you would be seven times more likely to guess the Lotto numbers than to guess these two pin codes.

The 17-page Reasons document concludes with a summary of its three reasons for refusing the application. First, “the right of women to equality and human dignity overrides the Applicant’s right to freedom of expression, as well as the rights of viewers to receive pornography on television in the home. The Authority holds this view because it regards the consumption of pornography as one contributing factor, amongst others, to the normalisation of violence against women in South Africa”.

While it’s true that the Authority holds this view, the document fails to explain why this is the case. The data they present on sexual offences certainly show a high incidence, but certainly not an increase in the period reported on (2003-2011) – if anything, they show a slight decrease. The data might of course be poor, but that’s the Authority’s problem to resolve if they want to make the connection between pornography and sexual violence.

Oddly, though, ICASA seems reluctant to make that connection despite using it in their conclusion. “The Authority is not saying that there is a direct causal relationship between the consumption of pornography and violent sexual crimes against women. … However, consumption of pornography may contribute to the incidence of rape by making it more likely that those who are already inclined to rape may feel validated by seeing women as sexual objects to actually rape, thereby increasing the overall incidence of rape”.

This thinking is utterly disingenuous, or entirely circular. I suspect the latter, as the document is riddled with phrases like “probable consequences” and “harmful effects” – the seeds of a moral panic are in other words widely planted. The point here is that either pornography does cause these effects, or it does not, or we don’t know. We’ve got some reason to suspect that it doesn’t (and, in fact, better evidence to suggest that it decreases sexual violence), but let’s assume – as ICASA does – that the “empirical evidence for this is not conclusive”.

In other words, we are being told that we should limit it just in case, on the precautionary principle. But unless we have reasons to suspect that pornography validates the perception of women as sexual objects more than Baywatch (for example) does, we also need to prevent the screening of Baywatch. Which is to say, the data needs to support the banning of pornography to prevent this decision from being based purely on an established moral conservatism.

This brings us to the second of the three reasons, namely that ODM “misconstrued the objections to its application as moral or religious grounds rather than as serious stakeholder engagement on constitutional or legal grounds”. The grounds referred, broadly speaking, are rights to equality and dignity. And again, if only consenting adults have access to this material and it cannot be shown to lead to increased sexual violence, the argument makes its case only by saying something to the effect of “pornography undermines equality and dignity because pornography undermines equality and dignity”.

As Margot St. James observed in response to the MacKinnon ordinance, “I’m against the censorship … [one] line that worried me tremendously was, `Pornography represents women as whores by nature.’ Well, what’s wrong with that? I’m a bad girl. I like being a bad girl. I like my whore status. I have control and power over men, in private certainly, and now also in my public life”.

Whether ICASA disapproves of these women or not, they feel empowered through pornography. And while we do have to balance the right to free expression against harms, evidence of such harms is necessary to override the presumption favouring freedom. (For those who want to retort that pornography isn’t a free speech issue, note that ICASA frames it as such, which legitimates a response on those same grounds.)

The second of the three reasons also includes an aside on ODM’s failure to participate in the public hearing. Earlier in the document, this is described as “inexplicable”, and ICASA laments how they “did not receive a courtesy” of being informed that ODM were planning on missing “such a golden opportunity”. The language, in other words, is fairly smug and not exactly impartial in tone. More relevant here though is that only the merit of the case should decide the issue. While ODM certainly erred in not being there to respond, this shouldn’t act as a reason for rejecting their application. Citing it as one seems to confuse making an impartial judgement on a case with teaching a moral lesson to ODM.

The final reason notes that the government has already “limited citizens’ rights to freedom of expression with regard to the consumption of pornography by law. Accordingly, the Authority sees no reason to expand access to pornography on the airwaves into the home”. For a regulatory body that proudly asserts that it is “regarded as pro-active rather than re-active”, this is an odd thing to cite as a reason. They had the opportunity – even if they ended up not taking it – to assert that current limitations are too severe. Instead, this appeal to precedent (and authority) seems to indicate the same intention to justify a foregone conclusion discussed in respect of the other two reasons.

Of course pornography can change the social landscape, and I’m even persuaded that it can do so negatively. Naomi Wolf is quite persuasive in arguing that pornography may be responsible for “deadening male libido in relation to real women, and leading men to see fewer and fewer women as ‘porn-worthy’”. If you agree, you should be free to choose to not subscribe to pornography channels. But you’re no longer free to make that choice – it’s been decided for you that you don’t have that option, and also that you’re not capable of keeping a pin number safe from your children.